Excerpt:.....could open to the same individual twice. i am, therefore, clearly of the view that the succession in this case opened on the death of the widow and the property will go to the husband's heirs in accordance with the provisions of the hindu succession act. in case a suit for possession is brought on the basis of the declaratory decree against him, it will only succeed if he is a better or an equal heir to him......from the husband or from the son was a limited owner thereof before the coming into force of the hindu succession act. after the coming into force of the said act, if such a female is in possession of the property she becomes its absolute owner, but if she had parted with the property before the coming into force of the hindu succession act, she does not become its absolute owner and the succession to that property has not to be traced from her, but it has to be traced from the last male-holder.the question, however, remains whether in such circumstances when she had already parted with the property before the coming into force of the said act and died after the coming into force of the said act, is the succession to be governed by the hindu succession act or by the law as it prevailed.....

Judgment:

D.K. Mahajan, J.

1. So far as the facts of this second appeal are concerned, there is no dispute. It will be proper to set out genealogical table of the parties.

On the death of her son Pokhar, Smt. Phusa succeeded to him in the estate. On the 18th October, 1954, she sold 6 Bighas and 16 Biswas of land to Harbhuj, her husband's brother's son. This sale was challenged by the grandsons of her husband's brother Partap on the usual ground that the sale was without consideration and necessity and would not affect their reversionary rights after the death of Mst. Phusa. The trial Court decreed the suit and on appeal by Harbhuj, the lower appellate Court affirmed the decision of the trial Court. Harbhuj, who is dissatisfied with this decision, has come up in second appeal to this Court.

2. Mr. M. D. Aggarwal, learned counsel for the appellant, has contended that Smt. Phusa died on the 18th of September, 1956, that is at the time when the lower appellate Court decided the appeal she was dead. According to the learned counsel, the lower appellate Court should have dismissed the declaratory suit because Harbhuj vendee was the next heir. This very argument, is now pressed before me in second appeal. Before dealing with the merits of this contention, I may mention that Ramji Lal, the real brother of Harbhuj, is alive and is a respondent in the appeal.

3. The rule of law is now well settled. A female in possession of immovable property either inherited from the husband or from the son was a limited owner thereof before the coming into force of the Hindu Succession Act. After the coming into force of the said Act, if such a female is in possession of the property she becomes its absolute owner, but if she had parted with the property before the coming into force of the Hindu Succession Act, she does not become its absolute owner and the succession to that property has not to be traced from her, but it has to be traced from the last male-holder.

The question, however, remains whether in such circumstances when she had already parted with the property before the coming into force of the said Act and died after the coming into force of the said Act, is the succession to be governed by the Hindu Succession Act or by the law as it prevailed before this provision was enacted? It is not disputed that all rules of Hindu law, which are contrary to the rules laid down in the Hindu Succession Act, have been abrogated by the Act. So far as the succession is concerned, the Act is a complete code and all rules of succession known to the Hindu law have been abrogated. It is not disputed, and indeed it could not be, that a widow, who had parted with the property before the coming into force of the Hindu Succession Act, the succession to that property would not be governed by Section 15 of the Hindu Succession Act, the reason being that she did not acquire an interest in that property under Section 14 of the said Act.

The question remains whether the succession to that property would be governed by Section 8 of the Act which is the only other provision, dealing with the succession? The settled rule of Hindu law prior to the Hindu Succession Act was that whenever a widow succeeded to property she succeeded as representing the husband and the husband is deemed to die when the widow dies. In other words, the succession in all such cases opens on the death of the widow. In this connection, reference may be made to Duni Chand v. Mt. Anar Kali, AIR 1946 PC 173, and for other propositions, which I have already set out above, reference may usefully be made to Amar Singh v. Sewa Ram, AIR 1960 Punj 530 (FB); Smt. Banso v. Charan Singh, AIR 1961 Punj 45; S. Kuldip Singh v. Karnail Singh Bakhshish Singh, AIR 1961 Punj 573; Gurmit Singh Pratap Singh v. Tara Singh Sahib Singh, AIR 1960 Punj 6; and Mst. Taro v. Darshan Singh, AIR 1960 Punj 145.

4. Mr. K.C. Puri, who appears for the respondents, has contended that the succession in the present case has to be governed by the Hindu law as it prevailed before the coming into force of the Hindu Succession Act and in support of his contention, he has relied on the Division Bench decision of the Allahabad High Court in Rameshwar v. Hardas, AIR 1964 All 308. This decision admittedly supports Mr. Puri's contention. But with utmost respect to the learned Judges of the Allahabad High Court I am clearly of the view that this decision is erroneous.

It is well settled that laws prevailing at the date of succession govern succession. The error in the Allahabad decision is that it proceeds on the basis that the succession opened out on the death of the last male-holder and not on the death of his widow. This view is untenable as it goes wholly against the settled rule of Hindu law. In the case of a limited owner, such as a widow who had succeeded to her husband's estate, the succession opens out on the death of the limited owner. The heirs of the husband will succeed to the property left by the limited owner according to the law, as it stands when the succession opens out.

5. What difference has then the Hindu Succession Act made to this rale? The only difference it has made is that the widow in possession of the limited estate becomes its absolute owner Tinder Section 14 of the Hindu Succession Act. If this happens, the succession to her estate will be governed by the rules set out in Section 15 of the Act; but where she had parted with the property she could not under the Act become its absolute owner. But, it does not mean that she also had lost her limited status qua that property. All that really happens is that she does not get the benefit of Section 14 of the Act. Thus, the succession to such property will open on her death and the property will go to her husband's heirs, because the last male-holder, that is her husband, would be deemed to be living through her would die when she dies. Therefore, on her death, the succession would be governed by Section 8 of the Hindu Succession Act which was in force then.

This is how I understand the true legal position and I am fortified, in my opinion, not only by decisions of this Court but by the decisions of the Privy Council as well as of the Supreme Court. The error that the learned Judges of the Allahabad High Court committed was that they thought that the succession would not open on the death of the widow but would open on the death of the last male-holder. If it opened on the death of the last male-holder, the widow being the next heir did succeed and I fail to see how succession could open to the same individual twice. Therefore, the only logical way in which the matter can be settled is the way the Privy Council did, that is the succession in the case of a limited estate intervening would open on the extinction of that estate and not earlier. I am, therefore, clearly of the view that the succession in this case opened on the death of the widow and the property will go to the husband's heirs in accordance with the provisions of the Hindu Succession Act.

6. It is obvious from the pedigree-table that it will have to be determined whether Neta or Pohkar was the last male-holder so far as the property in dispute is concerned, because on that will depend as to who are the immediate heirs to either of them. This is a matter which can only be settled when a suit for possession is filed by the next heir. So far as the present proceedings are concerned, this matter cannot be decided, particularly when Ramji Lal, an equal heir, with Harbhuj is present.

7. Mr. Aggarwal then contended that the plaintiff's suit has become speculative, because his client is the nearest heir. This contention would be sound if his client alone was the nearest heir, but that is not so. His brother is equally an heir with him and, as I have already said, It will really depend who are the heirs under Section 8 after the question whether Pohkar is to be treated as the last male-holder or Neta is to be treated as the last male-holder is settled and that matter can only be legitimately settled in a possessory suit in pursuance of the declaratory decree granted by the Courts below. I would, therefore, not hazard any opinion on the question as to who is the immediate heir and in my view, in the circumstances of this case, it cannot be said that the plaintiffs suit is speculative. Moreover, a widow's alienation can fee challenged even by a remote reversioner. A reversioner's suit is a representative suit and the decree obtained would enure for the benefit of the entire reversionary body including Harbhuj. He being in possession of the property, in the peculiar circumstances, need not sue. In case a suit for possession is brought on the basis of the declaratory decree against him, it will only succeed if he is a better or an equal heir to him.

8. For the reasons recorded above, I see no force in this appeal and would dismiss the same, but in the circumstances of the case would make no order as to costs throughout.